Wage Law

Wage law governs the transactions between an employer and an employee. Whenever an employee provides an employer with a certain form of labor and is due a monetary compensation, there are certain guidelines governing how and when those wages must be paid. In Massachusetts, the central statute regarding wage law is Chapter 149 of the Massachusetts General Law. Specifically, sections 148-150 of Chapter 149 comprise much of the relevant material about wage laws and violations.

Section 148 - Wages and Commissions

Section 148 is aimed at governing the payment of wages and commissions, who is deemed an employer, the provisions for cashing a check, and the rectification of the violation of wage law. One of the most important aspects of section 148 is the timetable it lays out for how long an employer has to pay their employees. The amount of time an employer has to pay wages is determined by the number of days the employee is employed for in a calendar week. The employer then has a certain number of days, following the termination of the pay period, to pay the employee. According to section 148, a pay period can be defined as weekly or bi-weekly. The time table is as follows:

Number of Days in Calendar Week	Number of Days Following the Termination of the Pay Period
7 days	7 days after the termination period
6 days	6 days after the termination period
5 days	7 days after the termination period

It is important to note that an employee who works for a period of less than five days is considered a “casual employee.” Moreover, section 148 provides guidelines for how an employee is to be paid following termination, i.e. fired: “any employee leaving their employment shall be paid in full on the following regular pay day, and, in the absence of a regular pay day, on the following Saturday; and any employee discharged from such employment shall be paid in full on the day of their discharge.” This includes any unused vacation time.

There are certain employees exempt from the regulations set forth in section 148:

• Employees at a hospital that is supported by government contributions
• Employees of an incorporated hospital which provides treatment to patients free of charge, or which is conducted as a public charity
• Employees of a co-operative association if they are a shareholder therein
• Casual employees

Section 148B - Determining Employee Status

Section 148B outlines what criteria must be present in order for an individual to be classified other than as an employee by a company (ie. as an independent contractor). Only if the following three conditions are all satisfied can an individual be classified other than an employee:

• "The individual is free from control and direction in connection with the performance of the service, both under their contract for the performance of service and in fact; and
• The service is performed outside the usual course of the business of the employer; and
• The individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed."

Those who believe that they have been misclassified as an independent contractor can file IRS Form SS-8 (Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding). There is no cost to file, and the IRS will evaluate whether or not they have been properly classified.

If, after filing IRS Form SS-8, the IRS concludes that someone is indeed an employee or if the person who filed has yet to hear back from the IRS, they may also file IRS Form 8919 (Uncollected Social Security and Medicare Tax on Wages).

Interns/Trainees

The Massachusetts Department of Labor Standards uses a 6 factor test to determine whether an individual can be classified as an intern/trainee. The 6 factors include whether the training:

1. is an internship, even though it includes actual operation of the employer’s facilities, is similar to that which would be given in an educational environment;
2. is for the benefit of the intern;
3. does not displace regular employees, but the intern works under close supervision of existing staff;
4. provides the employer with no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. the intern is not necessarily entitled to a job at the conclusion of the training; and
6. is based on a mutual understanding between the employer and the intern that the trainee is not entitled to wages for the time spent in training.

If these 6 factors are met, then minimum wage and overtime provisions do not apply to the intern/trainee.

Section 150 - Health, Safety, Working Condition Violations

Employees can litigate for wage law infractions under Massachusetts General Laws Chapter 149, Section 27, 27F, 27G, 33E, 52D, 148, 148A, 148B, 150, 150C, 152, 152A, 159C; and chapter 151, sections 1B, 19, and 20.

• Wage law violations under these sections can result in treble damages being paid to the prevailing plaintiff.

However, plaintiffs can only file for treble damages 90 days after filing a complaint with the the Attorney General or sooner if the Attorney General assents in writing. Employees have up to three years to sue after the violation occurred.

If one is instead bringing suit under Chapter 151, Section 1B and 20 (infractions regarding failure to pay proper overtime pay or other categories of minimum wage violations), employees need not report the infraction to the Attorney General’s Office; however, the statute of limitations under these sections is two years.

Fair Labor Standards Act – Massachusetts Minimum Wage Regulations

Aside from wage laws in the Commonwealth, it is important to note that there are federal guidelines that could prove useful in helping clients out with wage disputes. The minimum hourly wage in Massachusetts is $11.00 (with several ‘exceptions’ see below).If the federal wage becomes equal to or becomes higher than the State minimum, then the MA state minimum wage automatically increases to 10 cents above the federal rate set. If an employee works more than 40 hours a week, they must be paid at least 1.5 times their regular rate. Commissions, bonuses, incentive pay, etc. are excluded in computing regular rate/overtime pay.

The above is not applicable to:

• Janitor/maintenance employees who receive free rent for their services
• Interstate truck drivers/helpers covered by federal law
• Seasonal workers (involved in businesses that operate less than 120 days/year)
• Golf caddies, newsboys, child actor/performers
• Outside salesman/buyer
• Fisherman
• Switchboard operator
• Farm/agriculture laborer
• Workers in hotel, gas station, restaurant, non-profit college/school, etc.

Service employees:

• $2.63 minimum wage (provided that they receive and retain tips that exceed $20/month)
• Tips when added to service rate ($2.63) must equal or exceed the basic minimum wage
• Employer must inform employee of provisions
• All tips received by employee must be either retained by them or distributed through a tip-pooling arrangement

Farming/Agriculture:

• $1.60 minimum wage
• Boarding, lodging, facilities are not included as part of the wage paid to employee.

Migrant farm workers (not under federal government contract) After 10 days of employment, they must be provided with health insurance coverage as follows:

• Hospital room/board – maximum of ($45/day) x (Days of hospital confinement) or $3150 [whichever is less]
• Hospital service/supply - maximum of $450
• Out-patient lab/ x-ray exams – maximum of $50
• Sickness (within a 12 month period) - maximum of $50
• Surgical fee – maximum of $400/operation
• In-hospital physician fee - maximum of ($7/day) x (days of hospital confinement) or $490 (whichever is less)

Up to 40% of insurance premium may be withheld from weekly wages or salary from said worker. Employer contributes 60%. However, if the worker is unable to work for week, the employer must pay full cost of premium for week. Additionally, if the employer fails to withhold premium payments from the weekly wage, then the employer liable for entire premium.

Disabled employees must be paid the basic minimum wage

Individuals in apprentice or trainee/learner programs, camp counselors, and/or minors working part-time while still in secondary school must be paid no less than 80% of basic minimum wage.

Violations

If an employer knowingly pays or agrees to pay employee less than required rates (established by commissioner and/or the minimum fair wage regulation) or $1.85/hour in any occupation not covered by min wage regulation or $1.60/hour for farming/agriculture, they are subject to a separate civil citation for each week that is not fully paid to the employee.

The individual can prosecute for the full amount of overtime minus the amount actually paid to them by the employer. If the individual wins, they can be awarded treble damages in addition to costs of litigation and attorney fees (if applicable). The attorney general may bring into effect legal action if necessary to collect the claim. Any agreement between the employer and employee for work for less than overtime compensation is not a valid defense in court.

If an individual is fired because of reporting minimum wage violations, the employer is subject to a civil citation/order and is liable for damages on at least 1 month’s wages and at most 2 month’s wages of individual in addition to court costs.

Unlawful Deductions: No deductions (except meals/lodging/uniforms) can be made from basic minimum wage laws. For details and more on deductions related to uniforms and childcare please refer to: https://www.mass.gov/guides/pay-and-recordkeeping#-minimum-wage-

References